When does requirement for flexible working become indirect discrimination: Dobson v North Cumbria Care NHS Trust

What’s indirect discrimination?

The Equality Act 2010 protects employees from discrimination at work. One type of discrimination is indirect discrimination. This happens when an employer applies a policy, rule or working practice (known as a provision, criterion or practice, or PCP) to everyone, but it puts people with a particular protected characteristic at a disadvantage.

In cases involving sex discrimination, tribunals recognise that women are more likely to have primary childcare responsibilities. As a result, requirements for flexible working, overtime or weekend working may affect women more than men.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

In the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust, Mrs Dobson worked as a nurse and usually worked on Wednesdays and Thursdays. The Trust introduced a requirement for all nurses to work occasional Saturdays. Mrs Dobson argued that this disadvantaged her because of her childcare responsibilities and amounted to indirect sex discrimination.

Requirement for flexibility was justified and necessary to meet a legitimate business need

The Employment Appeal Tribunal agreed that the requirement placed women at a disadvantage as a group and also disadvantaged Mrs Dobson personally. However, her claim was unsuccessful because the Trust was able to show that the requirement was justified and necessary to meet a legitimate business need.

Takeaways for HR and employers:

• Policies which may disadvantage a particular group are not automatically unlawful.

• The important question is whether the policy serves a genuine business need and whether the employer has acted reasonably in balancing that need against the impact on employees.

4 practical tips on require flexibility from employees

1. Consider both the group and the individual. Tribunals will look at the impact of a policy on the affected group as well as on the individual employee bringing the claim.
2. You do not need extensive data. Employers are not expected to carry out detailed monitoring of every policy’s impact on protected groups before they can justify it.
3. Explore alternatives. While employees do not have to suggest alternatives, it can help if both sides engage in discussions about possible compromises.
4. Build in flexibility where possible. A policy is more likely to be justified if there is some flexibility in how it is applied and the employer has considered reasonable adjustments or exceptions.

Further reading

• Indirect Discrimination– Gov.uk
• Direct and Indirect Discrimination – EHRC
• Trans Rights? NHS Trust liable for discrimination – Hunter Law